The Supreme Court burning midnight oil on Wednesday night and then deciding not to do anything about the matter at hand throws open several logical questions.

What did the Supreme Court achieve by allowing Yeddyurappa to take oath as chief minister? There was no urgency. The tenure of the previous Assembly ends only on 28 May. The Supreme Court said the oath-taking and the formation of the government is subject to the final outcome of the case before it. Then why not defer oath-taking till Friday when the Supreme Court meets again to hear the case?

Obviously, the Supreme Court’s decision defies logic and adds to the political suspense. By such actions, the apex court is opening itself to prospects of criticism (to put it mildly and kindly).

Amid high political drama in Karnataka, the Supreme Court met at 1.45 am to hear a Congerss plea against BS Yeddyurappa’s swearing-in. Firstpost/ Pallavi Rebbapragada

Moreover, another logical question that arises out of the midnight courtroom drama is what was the urgency for the Supreme Court to hear the case late at night if it never wanted to defer Yeddyurappa’s oath-taking ceremony? What will the Supreme Court do with a letter that claims he has 104 MLAs with him? Will it be satisfied that this number makes BJP the single largest party and so the governor is right? Or will it wonder why the governor did not pursue other options like a post-poll alliance of Congress and JD(S)?

Would such a question not throw both the judiciary and the constitutional office of the governor into the vortex of a political crisis? Or, to avoid that, will the Supreme Court simply dismiss Yeddyurappa from office and ask the governor to call the post-poll combination? That would lead to another constitutional crisis, surely. So, what can the Supreme Court do?

The Supreme Court, in my opinion, can only do one thing without disrespecting the Constitution: It should clarify the order of preference of the options before a governor in case of a hung Assembly. Which party/formation should the governor call first in such a situation? Otherwise, we will endlessly debate the nature of a “correct sequence” and whether inviting the single largest party amounts to following a convention. Because putting it off on the governor’s discretion would mean leaving that option open till the very end.

If the apex court so decides to ascribe an order of preference to the options available before the governor in case of a hung House, then it will have to deliberate over the following three situations.

1. When the single largest party should be called

2. When a pre-poll alliance should be invited

3. When a post-poll alliance should be allowed to form the government

To rank these options, the Supreme Court will have to decide what is the most important objective of the governor’s action. Is it to install a grouping which the governor feels can muster support to pass the floor test? Or, is it to install a grouping which has the majority to pass the floor test?

It is common sense that in the case of a hung Assembly, the prime objective of the governor should be to ensure that the party/grouping he/she invites to form the government has the requisite numbers to pass the floor test. In which case, the Supreme Court can only rank the three options in this order: 1. pre-poll alliance 2. post-poll alliance 3. president’s rule.

It will then be the end of the road for the single largest party, which is fine in a hung house — conventions and laws need to change with time. How long can political parties use the single largest party-invite route to indulge in open horse trading? Should a governor officially encourage that?

At the end of it all, the Supreme Court did not have to waste midnight oil to hear this case since it did not order anything dramatic by allowing Yeddyurappa to take oath and play havoc with the state’s economy from the word go as he has already done with farmers’ loans. It should have given a direction to stop “resort politics” and instead asked the legislators to be present in person at their respective party headquarters till the court settled the case. But the court simply did nothing.

BS Yeddyurappa was on Thursday sworn-in as the chief minister of Karnataka by Governor Vajubhai Vala. 101 Reporters

Meanwhile, Yeddyurappa waived farmers’ loans but the question arises that how did he do that? He called a cabinet meeting to arrive upon the decision but who attended it? Only him. Why? Because there are no ministers. Is a quorum required? The secretariat manual does not talk of a quorum, but convention is that majority of the ministers has to be present. (On 10 February, a cabinet meeting of Kerala to take some major decisions was not held because only six of the 19 ministers were present.)

What is the strength of the council of ministers in Karnataka? The Constitution (91st Amendment) Act, 2003, which limits the size of all ministries in India, stipulates that the strength of a council of ministers should not exceed 15 percent of the total number of members in the Lok Sabha (in case of the central government) or the relevant state Assembly. With 224 members, Karnataka should have 33.6 ministers. Assuming half of them are cabinet rank, there should be 15.

But we are becoming mired in conventions and traditions, aren’t we? The first test for Yeddyurappa — in case BJP’s persuaders get 12 MLAs — is to elect the speaker of the Assembly. He does not have the numbers, even if the governor, thought he did, strangely enough.

Unless BJP buys loyalty of 12 MLAs, Yeddyurappa will have to choose between having a BJP speaker, or remaining a chief minister.

In case Yeddyurappa has persuaded the MLAs and is desperate to have a BJP person as a speaker, he will have to show his hand – that is the persuaded MLAs will have to vote for his choice for speaker. But then, the Congress and JD(S) would know who the Judas’ are. What if they counter-“purchase” the trust of even some of them before the floor test? Then Yeddyurappa has a problem.

Unless the BJP buys the “loyalty” and fealty of the 12 MLAs, Yeddyurappa will have to choose between a BJP speaker or himself remaining as chief minister. If the Congress and JD(S) were so intent on stopping Yeddyurappa from becoming chief minister, they should have better protected their MLAs from poaching by the BJP. That’s all. That would have ended the game on floor test day.

Though the JD(S) and Congress claim to be on the job of securing their legislators, it appears some are “missing”. So what do they do? Midnight drama. Them approaching the Supreme Court could have waited till morning, or it should have been done on the 12 May itself. If they were really sincere about forming the government with JD(S), they could have filed a petition in the Supreme Court long before the results or on counting day, asking the court to clarify what is the preferred sequence of options a governor has to follow with respect to the single largest party, a pre-poll alliance or a post-poll combine.

The question was, since the post-poll alliance was considered as the option by two governors in the recent past, should it be taken as the prime precedent in case of a hung Assembly. It is a legitimate issue that merits clarification from the court. Such a move would have tied the governor’s hands. He would have had no option but to forward the issue to the president or wait for a Supreme Court clarification. The apex court has kept everyone’s hopes alive: the Congress’, JD(S)’, and BJP’s.